Citation Nr: 0928470
Decision Date: 07/30/09 Archive Date: 08/04/09
DOCKET NO. 08-20 348 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Nebraska Department of
Veterans' Affairs
ATTORNEY FOR THE BOARD
M. Katz, Associate Counsel
INTRODUCTION
The Veteran served on active duty from May 1984 to July 1984.
He also had service in the Army National Guard of Nebraska
from March 1983 to January 1986.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2004 rating decision by the
Department of Veterans Affairs (VA) Regional Office in
Lincoln, Nebraska (RO).
FINDING OF FACT
The evidence of record demonstrates that bilateral hearing
loss is not related to active duty service.
CONCLUSION OF LAW
Bilateral hearing loss was not incurred in or aggravated by
active military service, nor may it be presumed to have been
so incurred. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002 &
Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
VA has certain notice and assistance requirements. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326 (2008). Upon receipt of a substantially complete
application for benefits, VA must notify the Veteran of what
information or evidence is needed in order to substantiate
the claim, and it must assist the Veteran by making
reasonable efforts to obtain the evidence needed. 38
U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
Prior to the initial adjudication of the Veteran's claim, a
July 2007 letter satisfied the duty to notify provisions. 38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16
Vet. App. at 187; Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). The letter also essentially requested that the
Veteran provide any evidence in his possession that pertained
to this claim. 38 C.F.R. § 3.159(b)(1). Further, the
purpose behind the notice requirement has been satisfied
because the Veteran has been afforded a meaningful
opportunity to participate effectively in the processing of
his claim, to include the opportunity to present pertinent
evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir.
2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ.
2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S.
- (2009). Thus, the Board finds that the content
requirements of the notice VA is to provide have been met.
See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).
The duty to assist the Veteran has also been satisfied in
this case. The RO has obtained the Veteran's service
treatment records, and his Army National Guard treatment
records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In
addition, the Veteran was provided with a VA examination with
regard to his claim, and he has not indicated that he found
this examination to be inadequate. 38 C.F.R. § 3.159(c)(4);
Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In
addition, the Board finds that the VA examination obtained in
this case is more than adequate, as it provided sufficient
detail to determine whether the Veteran's bilateral hearing
loss was related to service. Finally, there is no indication
in the record that additional evidence relevant to the issue
being decided herein is available and not part of the record.
See Pelegrini, 18 Vet. App. at 112. As there is no
indication that any failure on the part of VA to provide
additional notice or assistance reasonably affects the
outcome of this case, the Board finds that any such failure
is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103
(2005), rev'd on other grounds, Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006).
Generally, service connection may be established for
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. §
3.303(a). Service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Impaired hearing is considered a disability for VA purposes
when the auditory threshold in any of the frequencies 500,
1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or
when the auditory thresholds for at least three of the
frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26
decibels or greater, or when speech recognition scores using
the Maryland CNC Test are less than 94 percent. 38 C.F.R. §
3.385.
In order to establish service connection for a claimed
disorder, the following must be shown: (1) medical evidence
of a current disability; (2) medical, or in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between the claimed in-service disease or injury
and the current disability. Hickson v. West, 12 Vet. App.
247, 253 (1999).
The Veteran claims entitlement to service connection for
bilateral hearing loss. In his July 2007 claim form, he
reported that he had bilateral hearing loss due to exposure
to loud noise and the concussion of firing tanks while
working as a crewmember. He stated that, during summer camp
in the Nebraska National Guard at Fort Carson, Colorado in
1985, he was beside a tank when it fired. He noted that,
every summer during the four years that he was in the
National Guard, he went to summer camp and performed weekend
drills where he would fire tanks. He also reported exposure
to the loud noise of firing machine guns and pistols during
summer camp and "week-end firing AT's" without hearing
protection. In a July 2007 hearing questionnaire, the
Veteran noted occupational noise exposure as a railcar
inspector, but stated that he used hearing protection. He
also indicated that he had recreational noise exposure from
riding motorcycles and hunting with hearing protection.
Initially, the Board acknowledges the Veteran's contentions
that his current bilateral hearing loss is the result of
noise exposure during his service in the Nebraska Army
National Guard. However, the Veteran is not entitled to
benefits for a disability incurred during state National
Guard service unless his National Guard unit was called to
active Federal service by the President of the United States,
or unless he performed "full-time duty" under the
provisions of 32 U.S.C.A. §§ 316, 502, 503, 504, or 505 (West
2002). See Allen v. Nicholson, 21 Vet. App. 54 (2007)
(Section 12401 of title 10, United States Code, provides that
"members of the Army National Guard of the United States and
the Air National Guard of the United States are not in active
Federal service except when ordered thereto under law." 10
U.S.C.A. § 12401 (West 2002)). Thus, a member of the
National Guard holds a status as a member of the federal
military or the state militia, but never both at once. See
Perpich v. Department of Defense, 496 U.S. 334 (1990)); see
also Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir.
2003) ("members of the National Guard only serve the federal
military when they are formally called into the military
service of the United States [and a]t all other times,
National Guard members serve solely as members of the State
militia under the command of a state governor"). The
Veteran's National Guard records do not show that his
National Guard service qualified as Federal service, and
therefore, he is not entitled to VA benefits for service
connection for any bilateral hearing loss incurred as a
result of noise exposure during his National Guard service.
However, the Veteran did have active duty service from May
1984 to July 1984. Accordingly, the Board will consider
whether service connection for bilateral hearing loss is
warranted based on this active duty service.
The Board observes that, although the Veteran's service
treatment records were requested and provided, the Veteran's
claims file does not reflect that he had any medical
treatment during his period of active duty service from May
1984 to July 1984. In addition, the National Guard medical
treatment records are negative for any diagnosis of or
treatment for bilateral hearing loss. A February 1983
National Guard entrance examination reveals that the
Veteran's ears were normal. On the authorized audiological
evaluation, pure tone thresholds, in decibels, were as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
25
10
10
-
25
LEFT
20
5
0
-
15
A November 1985 National Guard separation examination also
reflects that the Veteran's ears were normal on examination.
On the authorized audiological evaluation, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
-
10
5
0
5
LEFT
25
20
5
10
15
In a report of medical history, completed at that time, the
Veteran denied a history of ear trouble and hearing loss.
In September 2007, the Veteran underwent a VA audiological
examination. The Veteran complained of trouble hearing, and
reported that he noticed hearing loss after an acoustic
injury involving tanks. He reported noise exposure while on
the firing line with tanks and in the middle of a tank when a
concussion discharged. He reported that his ear bled for a
while. He also noted noise exposure from truck engines and
gunfire without the use of hearing protection. The Veteran
reported post-service occupational noise exposure from
working in a railcar repair shop with the use of hearing
protection. He stated that he farmed without the use of
hearing protection. On the authorized audiological
evaluation, pure tone thresholds, in decibels, were as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
15
10
25
40
LEFT
20
15
15
25
40
Speech audiometry revealed speech recognition ability of 100
percent in both the left and the right ear. The diagnoses
were mild sensorineural hearing loss at 4000 Hertz
bilaterally and excellent word recognition scores
bilaterally. After reviewing the Veteran's claims file and
conducting an interview and an examination of the Veteran,
the VA examiner concluded that "it is not likely the hearing
loss is the result of noise exposure in the military." The
examiner explained that review of the audiometric testing
reveals that the results from 1983 were no worse than the
results from 1985.
The Board finds that the evidence of record does not support
a finding of service connection for bilateral hearing loss.
Initially, the Board observes that the September 2007 VA
examination report reveals that the Veteran has bilateral
hearing loss for VA purposes. See Degmetich v. Brown, 104
F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence
of a current disability is the cornerstone of a claim for VA
disability compensation); see also 38 C.F.R. § 3.385.
Although the medical evidence shows a bilateral hearing
disability for VA purposes under the provisions of 38 C.F.R.
§ 3.385, there is no medical evidence that the Veteran's
current bilateral hearing loss is related to his active duty
service from May 1984 to July 1984. See Hickson, 12 Vet.
App. at 253. In addition, the Veteran does not contend that
his bilateral hearing loss is related to active duty service.
By his own statements, the Veteran asserts that his bilateral
hearing loss is related to noise exposure during his National
Guard service, and not his active duty service. As explained
above, the Veteran's National Guard service does not qualify
as Federal service for benefits purposes.
The only medical opinion of record states that the Veteran's
current bilateral hearing loss is not related to his military
service. In this, and in other cases, only independent
medical evidence may be considered to support Board findings.
The Board may not base a decision on its own unsubstantiated
medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171,
175 (1991). Accordingly, there is no medical evidence of
record linking the Veteran's bilateral hearing loss to
service or to any incident of service. This lack of
cognizable evidence is particularly dispositive as the first
medical evidence of record for bilateral hearing loss is over
25 years after his period of active duty service ended. See
Mense v. Derwinski, 1 Vet. App. 354 (1991). As there is no
medical evidence which provides the required nexus between
the Veteran's active military duty and bilateral hearing
loss, service connection for bilateral hearing loss is not
warranted. See Caluza v. Brown, 7 Vet. App. 498 (1995).
In reaching this decision the Board considered the doctrine
of reasonable doubt, however, as the preponderance of the
evidence is against the Veteran's claim, the doctrine is not
for application. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
ORDER
Service connection for bilateral hearing loss is denied.
____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs